UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 1)
Congoleum Corporation
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(Name of Issuer)
Class A Common Stock, par value $.01 per share
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(Title of Class of Securities)
207195 10 8
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(CUSIP Number)
Henry W. Winkleman, Esq.
c/o American Biltrite Inc.
57 River Street
Wellesley Hills, Massachusetts 02181
(781) 237-6655
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
With a copy to:
Louis A. Goodman, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
One Beacon Street
Boston, Massachusetts 02108
(617) 573-4800
December 22, 1997
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box |_|.
SCHEDULE 13D
CUSIP NO. 207195 10 8
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NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 American Biltrite Inc.
I.R.S. Identification No. 04-1701350
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)|_|
(b)|X|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
OO (See Item 3)
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |_|
- ----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- ----------------------------------------------------------------------------
7 SOLE VOTING POWER (See Item 5)
0
NUMBER OF -----------------------------------------------------
SHARES 8 SHARED VOTING POWER (See Item 5)
BENEFICIALLY 4,395,605
OWNED BY -----------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER (See Item 5)
REPORTING 0
PERSON -----------------------------------------------------
WITH 10 SHARE DISPOSITIVE POWER (See Item 5)
4,395,605
- ----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
(See Item 5)
4,395,605
- ----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES*
(See Item 5) |X|
- ----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
50.65%
- ----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP NO. 207195 10 8
- ----------------------------------------------------------------------------
NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 Natalie S. Marcus
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)|_|
(b)|X|
- ----------------------------------------------------------------------------
3 SEC USE ONLY
- ----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO (See Item 3)
- ----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |_|
- ----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- ----------------------------------------------------------------------------
7 SOLE VOTING POWER (See Item 5)
NUMBER OF 0
SHARES -----------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER (See Item 5)
OWNED BY 4,395,605
EACH -----------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER (See Item 5)
PERSON 0
WITH -----------------------------------------------------
10 SHARE DISPOSITIVE POWER (See Item 5)
4,395,605
- ----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
(See Item 5)
4,395,605
- ----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES*
(See Item 5) |X|
- ----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
50.65%
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14 TYPE OF REPORTING PERSON*
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP NO. 207195 10 8
- ----------------------------------------------------------------------------
NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 Richard G. Marcus
- ----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)|_|
(b)|X|
- ----------------------------------------------------------------------------
3 SEC USE ONLY
- ----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO (See Item 3)
- ----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)|_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- ----------------------------------------------------------------------------
7 SOLE VOTING POWER (See Item 5)
NUMBER OF 90,000
SHARES -----------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER (See Item 5)
OWNED BY 4,395,605
EACH -----------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER (See Item 5)
PERSON 90,000
WITH -----------------------------------------------------
10 SHARE DISPOSITIVE POWER (See Item 5)
4,395,605
- ----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
(See Item 5)
4,485,605
- ----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES*
(See Item 5) |X|
- ----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
51.16%
- ----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP NO. 207195 10 8
- ----------------------------------------------------------------------------
NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 Roger S. Marcus
- ----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)|_|
(b)|X|
- ----------------------------------------------------------------------------
3 SEC USE ONLY
- ----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO (See Item 3)
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- ----------------------------------------------------------------------------
7 SOLE VOTING POWER (See Item 5)
NUMBER OF 90,000
SHARES ----------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER (See Item 5)
OWNED BY 4,395,605
EACH ----------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER (See Item 5)
PERSON 90,000
WITH ----------------------------------------------------
10 SHARE DISPOSITIVE POWER (See Item 5)
4,395,605
- ----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
(See Item 5)
4,485,605
- ----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES*
(See Item 5) |X|
- ----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
51.16%
- ----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ----------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP NO. 207195 10 8
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NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 William M. Marcus
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)|_|
(b)|X|
- ----------------------------------------------------------------------------
3 SEC USE ONLY
- ----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO (See Item 3)
- ----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |_|
- ----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- ----------------------------------------------------------------------------
7 SOLE VOTING POWER (See Item 5)
NUMBER OF 0
SHARES ----------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER (See Item 5)
OWNED BY 4,395,605
EACH ----------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER (See Item 5)
PERSON 0
WITH ----------------------------------------------------
10 SHARE DISPOSITIVE POWER (See Item 5)
4,395,605
- ----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
(See Item 5)
4,395,605
- ----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES*
(See Item 5) |X|
- ----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
50.65 %
- ----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ----------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP NO. 207195 10 8
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NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 Cynthia S. Marcus
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)|_|
(b)|X|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
OO (See Item 3)
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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NUMBER OF 7 SOLE VOTING POWER (See Item 5)
SHARES 0
BENEFICIALLY ----------------------------------------------------
OWNED BY 8 SHARED VOTING POWER (See Item 5)
EACH 4,395,605
REPORTING ----------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER (See Item 5)
WITH 0
----------------------------------------------------
10 SHARE DISPOSITIVE POWER (See Item 5)
4,395,605
- ----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
(See Item 5)
4,395,605
- ----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES*
(See Item 5) |X|
- ----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
50.65%
- ----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ----------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP NO. 207195 10 8
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NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
1 Charles E. Heming
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)|_|
(b)|X|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
OO (See Item 3)
- ----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |_|
- ----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- ----------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER (See Item 5)
SHARES 0
BENEFICIALLY ----------------------------------------------------
OWNED BY 8 SHARED VOTING POWER (See Item 5)
EACH 0
REPORTING ----------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER (See Item 5)
WITH 0
----------------------------------------------------
10 SHARE DISPOSITIVE POWER (See Item 5)
0
- ----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
(See Item 5)
0
- ----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES*
(See Item 5) |X|
- ----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
0%
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14 TYPE OF REPORTING PERSON*
IN
- ----------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Item 1. Security and Issuer.
The title of the class of equity securities to which this Amendment
No. 1 (this "Amendment No. 1") to a joint statement on Schedule 13D (the
"Statement") relates is the Class A Common Stock, par value $.01 per
share (the "Class A Stock"), of Congoleum Corporation, a Delaware
corporation (the "Company"), 3705 Quakerbridge Road, Mercerville, New
Jersey 08619-0127. The persons (other than Mr. Charles E. Heming) filing
this Amendment No. 1 beneficially own shares of Class A Stock as a result
of their beneficial ownership of shares of the Class B Common Stock, par
value $.01 per share, of the Company (the "Class B Stock"), which shares
of Class B Stock are convertible under certain circumstances into shares
of Class A Stock (the "Conversion Feature"), as more fully set forth in
Item 3 of the Statement as originally filed with the Securities and
Exchange Commission (the "Commission"). Each holder of Class A Stock is
entitled to one vote for each share thereof held by such holder, and each
holder of Class B Stock is entitled to two votes for each share thereof
held by such holder.
Item 2. Identity and Background.
(a) This Amendment No. 1 is filed on behalf of American Biltrite
Inc., a Delaware corporation ("American Biltrite"), and the persons
listed on Exhibit A hereto (the "Filing Persons"). Other than as a result
of the Conversion Feature referenced in Item 1 above, American Biltrite
does not beneficially own any shares of Class A Stock at this time.
The Filing Persons (other than Mr. Heming) together beneficially
own a 55.8% interest in the common stock, par value $.01 per share, of
American Biltrite (the "American Biltrite Common Stock"), as to which
they have a joint statement on Schedule 13D on file with the Commission,
and therefore may be deemed to indirectly beneficially own the shares of
Class A Stock directly beneficially owned by American Biltrite. Reference
is made to that joint statement on Schedule 13D for additional
information regarding the Filing Persons' beneficial ownership of the
American Biltrite Common Stock. Other than as a result of their combined
55.8% interest in American Biltrite Common Stock, none of the Filing
Persons except Richard G. Marcus and Roger S. Marcus beneficially owns
any shares of Class A Stock. Richard G. Marcus and Roger S. Marcus each
beneficially own 90,000 shares of Class A Stock which are purchasable
upon exercise of options (the "Options") which are exercisable within 60
days of the date of this Amendment No. 1. Other terms and conditions of
the Options are set forth in the form of stock option agreement between
the Company and each of Richard G. Marcus and Roger S. Marcus, filed as
Exhibit C hereto and incorporated by reference herein.
Effective as of November 3, 1997, Mr. Heming ceased to be a
beneficial owner of American Biltrite Common Stock and a member of the
group of persons filing the joint statement on Schedule 13D with respect
to the American Biltrite Common Stock. Accordingly, effective upon the
filing of this Amendment No. 1 with the Commission, Mr. Heming will cease
to be a Filing Person.
Any reference herein to the beneficial ownership of shares of Class
A Stock by American Biltrite shall be deemed to also constitute reference
to the indirect beneficial ownership of the same shares which may be
attributed to the Filing Persons, whether or not such indirect beneficial
ownership is expressly referenced.
American Biltrite claims no responsibility for the accuracy or
completeness of information in this Amendment No. 1 provided by or
relating to any Filing Person. None of the Filing Persons claims
responsibility for the accuracy or completeness of information in this
Amendment No. 1 provided by or relating to any other Filing Person or
American Biltrite.
(b) The principal business and principal office address of American
Biltrite is 57 River Street, Wellesley Hills, Massachusetts 02181. The
business address of each of the Filing Persons except Mr. Heming is c/o
American Biltrite Inc., 57 River Street, Wellesley Hills, Massachusetts
02181. The business address of Mr. Heming is c/o Wormser, Kiely, Galef &
Jacobs LLP, 711 Third Avenue, New York, New York 10017-4014.
(c) American Biltrite is a producer of protective paper, film and
pressure sensitive tapes and adhesive products for various applications,
a national supplier, distributor and servicer of fashion jewelry and
related accessories and, through the Company, a manufacturer and producer
of resilient vinyl flooring. The present principal occupation or
employment of each of the Filing Persons, and the name, principal
business and address of the corporation or other organization in which
such employment is conducted is set forth on Exhibit A hereto and
incorporated by reference herein.
(d) and (e) During the last five years, neither American Biltrite
nor any Filing Person other than Richard G. Marcus has (i) been convicted
in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction which resulted in a
judgment, decree or final order enjoining future violations of, or
prohibiting or mandating any activities subject to, federal or state
securities laws or finding any violation of such laws. In February 1996,
Richard G. Marcus entered into a settlement agreement in the form of a
consent decree with the Commission in connection with the Commission's
investigation covering trading in the American Biltrite Common Stock by
an acquaintance of Richard G. Marcus. Richard G. Marcus, without
admitting or denying the Commission's allegations of securities law
violations, agreed, among other things, to the entry of a permanent
injunction against future violations of Section 10(b) of the Exchange Act
of 1934, as amended (the "Exchange Act") and Rule 10b-5 under the
Exchange Act.
(f) American Biltrite is incorporated under the laws of the State
of Delaware. Each of the Filing Persons is a United States citizen.
Item 3. Source and Amount of Funds or Other
Consideration.
Neither American Biltrite nor any of the Filing Persons has
acquired beneficial ownership of any shares of Class A Stock or Class B
Stock since February 8, 1995, except through vesting of the Options. The
Options were granted to Richard G. Marcus and Roger S. Marcus in their
capacities as executive officers of the Company.
Item 4. Purpose of the Transaction.
Although none of them have any current plans to do so (other than
as set forth or incorporated by reference in the Statement as the same has
been amended by this Amendment No. 1), from time to time American Biltrite
or the Filing Persons may acquire beneficial ownership of additional Class A
Stock or dispose of some or all of the Class A Stock beneficially owned by
any of them. Three of the Filing Persons, Roger S. Marcus, Richard G. Marcus
and William M. Marcus, serve as directors or executive officers of the Company.
Therefore, each may be deemed to be a "controlling person" of the Company.
With respect to the Company and except as set forth or incorporated
by reference in this Amendment No. 1, neither American Biltrite nor any
of the Filing Persons currently has any plans or proposals which would
relate to or which would result in:
(a) the acquisition by any person of additional securities of the
Company or the disposition of securities of the Company;
(b) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Company or any of its
subsidiaries;
(c) a sale or transfer of a material amount of assets of the
Company or any of its subsidiaries;
(d) any change in the present board of directors or management of
the Company, including any plans or proposals to change the number or
term of directors or to fill any existing vacancies on the board;
(e) any material change in the present capitalization or dividend
policy of the Company;
(f) any other material change in the Company's business or
corporate structure;
(g) changes in the Company's Certificate of Incorporation, as
amended, Amended and Restated By-Laws or instruments corresponding
thereto or other actions which may impede the acquisition of control of
the Company by any person;
(h) causing a class of securities of the Company to be delisted
from a national securities exchange or to cease to be authorized to be
quoted in an inter-dealer quotation system of a registered national
securities association;
(i) a class of equity securities of the Company becoming eligible
for termination of registration pursuant to Section 12(g)(4) of the
Exchange Act; or
(j) any action similar to any of those enumerated above.
Item 5. Interest in Securities of the Issuer.
(a) As a result of the Conversion Feature, as of December 31, 1997,
American Biltrite beneficially owned 4,395,605 shares of Class A Stock,
representing approximately 50.65% of the total number of shares of Class
A Stock outstanding as of such date (such 4,395,605 shares of Class A
Stock being deemed to be outstanding for the purpose of computing such
percentage, as required by Rule 13d-3 under the Exchange Act). As set
forth in subparagraph (a) of Item 2 above, the Filing Persons may be
deemed to indirectly beneficially own the same shares of Class A Stock,
and Richard G. Marcus and Roger S. Marcus each beneficially own 90,000
shares of Class A Stock which are purchasable upon exercise of the
Options (which are exercisable within 60 days of the date of this
Amendment No. 1). Collectively, as of December 31, 1997, American
Biltrite and the Filing Persons beneficially owned 4,575,605 shares of
Class A Stock, representing approximately 51.65% of the total number of
shares of Class A Stock outstanding as of such date (such 4,575,605
shares of Class A Stock being deemed to be outstanding for the purpose of
computing such percentage, as required by Rule 13d-3 under the Exchange
Act). In addition, as of December 31, 1997, based on information made
available to American Biltrite and the Filing Persons by the Company,
Hillside Capital Incorporated ("Hillside") beneficially owned 359,395
shares of Class A Stock on the same basis. These beneficial ownership
numbers, as well as the numbers used in calculating shares of Class A
Stock outstanding for the purpose of this Amendment No. 1, reflect share
repurchases described in the Company's December 22, 1997 press release, a
copy of which is filed as Exhibit B hereto. Neither American Biltrite nor
any Filing Person has the sole or shared power to vote or direct the vote
or sole or shared power to dispose or direct the disposition of the Class
A Shares beneficially owned by Hillside. As a result of the voting
agreement made by American Biltrite and Hillside in the Stockholders
Agreement described in Item 3 of the Statement as originally filed with
the Commission, however, American Biltrite and Hillside may be deemed to
be members of a group. American Biltrite expressly disclaims membership
in this group. The 4,395,605 shares of Class A Stock reported as
beneficially owned by American Biltrite in this Amendment No. 1 do not
include the 359,395 shares of Class A Stock beneficially owned by
Hillside, as to which shares American Biltrite and the Filing Persons
disclaim beneficial ownership for the purposes of Section 13(d) or 13(g)
of the Exchange Act and for each and every other purpose.
(b) In the event of a conversion of any portion of the shares of
Class B Stock owned of record by American Biltrite into shares of Class A
Stock (the "Conversion"), (i) American Biltrite would have the power to
vote or direct the vote and to dispose or direct the disposition of each
of the shares of Class A Stock held of record by American Biltrite as a
result of the Conversion and (ii) the Filing Persons, as a result of
their combined 55.8% interest in American Biltrite Common Stock,
collectively may be deemed to have the power to vote or direct the vote
and to dispose or direct the disposition of each the shares of Class A
Stock held of record by American Biltrite as a result of the Conversion.
In the event of an exercise of all or a portion of the Options,
Richard G. Marcus or Roger S. Marcus, as the case may be, would have the
power to vote or direct the vote and dispose or direct the disposition of
each of the shares of Class A Stock purchased by him upon exercise of his
Options.
Reference is made to subparagraph (a) of this Item 5 for
information concerning shares of Class A Stock beneficially owned by
Hillside, which information is incorporated by reference herein.
(c) Neither American Biltrite nor any of the Filing Persons has
effected any transaction in the shares of Class A Stock during the past
60 days.
(d) As a result of the combined 55.8% interest of the Filing
Persons (other than Mr. Heming) in American Biltrite Common Stock, the
Filing Persons (other than Mr. Heming) may be deemed to have the right to
receive or direct the receipt of dividends from, or the proceeds from the sale
of, the 4,395,605 shares of Class A Stock beneficially owned by American
Biltrite. In the event of an exercise of all or a portion of the Options,
only Richard G. Marcus or Roger S. Marcus, as the case may be, would have
the right to receive or direct the receipt of dividends from, or the
proceeds from the sale of each of the shares of Class A Stock purchased by
him upon exercise of his Options.
(e) Not applicable, except as to Mr. Heming. Mr. Heming ceased to
be the beneficial owner of more than 5% of the Class A Stock as of
November 3, 1997.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer.
Reference is made to information regarding the Stockholders
Agreement described in Item 3 of the Statement as originally filed with
the Commission, which information is incorporated by reference herein.
In connection with the filing of the Statement, American Biltrite
and the Filing Persons entered into a Joint Filing Agreement, which
agreement was attached as Exhibit E to the Statement as initially filed
with the Commission and is incorporated by reference herein.
The Filing Persons have in the past taken, and may in the future
take, actions which direct or cause the direction of the management of
American Biltrite and their voting of shares of American Biltrite Common
Stock in a manner consistent with each other. Accordingly, the Filing
Persons may be deemed to be acting together for the purpose of acquiring,
holding, voting or disposing of shares of American Biltrite Common Stock,
within the meanings of Section 13(d)(3) of the Exchange Act and Rule
13d-5 thereunder. However, the Filing Persons have no express agreement
to act together for the purpose of acquiring, holding, voting or
disposing of such shares. The foregoing description of the relationship
among the Filing Persons with respect to shares of American Biltrite
Common Stock is qualified in its entirety by reference to the joint
statement on Schedule 13D filed by the Filing Persons with the Commission
with respect to their beneficial ownership of the American Biltrite
Common Stock, including all amendments thereto, and incorporated by
reference herein. The information set forth in subparagraph (a) of Item 2
above also is incorporated by reference herein. Other than agreements for
Options granted by the Company for the purchase of shares of Class A
Stock, the Filing Persons have no contract, arrangement, understanding or
relationship with respect to the shares of Class A Stock or Class B
Stock.
Except as set forth or incorporated by reference in the Statement,
neither American Biltrite nor the Filing Persons have any contracts,
arrangements, understandings or relationships (legal or otherwise) with
any person with respect to any securities of the Company, including but
not limited to the transfer or voting of any of the shares of Class A
Stock or Class B Stock, finders fees, joint ventures, loan or option
agreements, puts or calls, guarantees of profits, division of profits or
loss, or the giving or withholding of proxies.
Item 7. Material to be filed as Exhibits.
Exhibit A: Names of Filing Persons and
Information Required By Item 2 of
Schedule 13D
Exhibit B: Press Release of Congoleum
Corporation dated December 22, 1997
Exhibit C: Form of stock option agreement
between the Congoleum Corporation and
each of Richard G. Marcus and Roger S.
Marcus
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this Statement is
true, complete and correct.
Dated: February 26, 1998
AMERICAN BILTRITE INC.
By /s/ Richard G. Marcus
-------------------------------
Richard G. Marcus
President
/s/ Natalie S. Marcus*
-------------------------------
Natalie S. Marcus
/s/ Richard G. Marcus
-------------------------------
Richard G. Marcus
/s/ Roger S. Marcus*
-------------------------------
Roger S. Marcus
/s/ William M. Marcus*
-------------------------------
William M. Marcus
/s/ Cynthia S. Marcus*
-------------------------------
Cynthia S. Marcus
/s/ Charles E. Heming*
-------------------------------
Charles E. Heming
/s/ Richard G. Marcus
-------------------------------
Richard G. Marcus
Attorney-in-fact
* Signed by Richard G. Marcus pursuant to a power of attorney dated
February 16, 1995, a copy of which was attached as Exhibit E to the
Statement, as initially filed with the Commission, and is
incorporated by reference herein.
EXHIBIT INDEX
Sequentially
Exhibit Description Numbered Page
A Names of Filing Persons and 26
Information Required By Item 2 of
Schedule 13D
B Press release of Congoleum Corporation
dated December 22, 1997 27
C Form of stock option agreement between 29
Congoleum Corporation and each of Richard G.
Marcus and Roger S. Marcus
EXHIBIT A
NAMES OF FILING PERSONS
AND
INFORMATION REQUIRED BY ITEM 2 OF SCHEDULE 13D
Name of Filing Principal Occupation or
Person Employment, Etc.
- -------------- -----------------------
Natalie S. Marcus Private investor
Richard G. Marcus Vice Chairman of Congoleum Corporation and
President and Chief Operating Officer of
American Biltrite Inc.
Roger S. Marcus Chairman, President and Chief Executive
Officer of Congoleum Corporation and
Chairman and Chief Executive Officer of
American Biltrite Inc.
William M. Marcus Executive Vice President and Treasurer of
American Biltrite Inc.
Cynthia S. Marcus Not employed
Charles E. Heming Attorney at Wormser, Kiely, Galef & Jacobs
LLP, a law partnership located at 711
Third Avenue, New York, New York 10017-
4014
American Biltrite Inc. is a producer of protective paper, film and
pressure sensitive tapes and adhesive products for various applications,
and a national supplier, distributer and servicer of fashion jewelry and
related accessories and, through Congoleum Corporation, a manufacturer
and producer of resilient vinyl flooring. The address of American
Biltrite Inc. is 57 River Street, Wellesley Hills, Massachusetts 02181.
Congoleum Corporation is a manufacturer of resilient vinyl flooring
located at 3705 Quakerbridge Road, Mercerville, New Jersey 08619-0127.
Natalie Marcus is the mother of Roger S. Marcus and Richard G.
Marcus and the aunt of William M. Marcus. William M. Marcus is
the husband of Cynthia S. Marcus.
EXHIBIT B
FOR IMMEDIATE RELEASE
For Further Information:
Howard N. Feist
Sr. Vice President - Finance
(609) 584-3586
CONGOLEUM CORPORATION ANNOUNCES SHARE REPURCHASE
MERCERVILLE, NJ, DECEMBER 22 - Congoleum Corporation (NYSE: CGM)
announced today that it has repurchased 500,000 shares of its Class B
common stock for $4,625,000 ($9.25 per share) in a privately negotiated
transaction with Hillside Capital Incorporated. The repurchased shares
will be retired.
The Company further indicated that it has previously repurchased a total
of 464,200 shares of its Class A and B common stock to date in open
market transactions for an aggregate amount of $4,948,000, effectively
completing the $5,000,000 repurchase program which had been previously
announced.
After giving effect to these transactions, the Company has a total of
9,037,800 shares of common stock outstanding.
The Company also indicated that it has repurchased a total of $13,406,000
to date of its 9% Senior Notes, leaving $76,594,000 outstanding. In
connection with these note repurchases, the Company expects to report an
extraordinary after-tax charge of $279,000 ($.03 per share) for debt
extinguishment costs in 1997.
Congoleum Corporation is a leading manufacturer of resilient
flooring, serving both residential and commercial markets. Its sheet,
tile and plank products are available in a wide variety of designs and
colors, and are used in remodeling, manufactured housing, new
construction, and commercial applications. The Congoleum brand name is
recognized and trusted by consumers as representing a company that has
been supplying attractive and durable flooring products for over a
century. Congoleum is a 49% owned subsidiary of American Biltrite, Inc.
(AMEX: ABL).
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NONQUALIFIED STOCK OPTION AWARD AGREEMENT
UNDER THE CONGOLEUM CORPORATION
1995 STOCK OPTION PLAN
Congoleum Corporation, a Delaware corporation (the
"Company"), hereby grants to _________________ (the "Optionee"), an
employee of the Company, an option (the "Option") to purchase from the
Company up to, but not exceeding, in the aggregate, 150,000 shares (the
"Shares") of Class A Common Stock, par value $.01 per share, of the
Company ("Stock") at $13.00 per share (the "Option Price"), subject to
the following terms and conditions:
1. The Option is granted pursuant to the Congoleum Corporation
1995 Stock Option Plan (the "Plan"), as established by certain
resolutions adopted by the Board of Directors and stockholders of
the Company. By executing this Agreement, the Optionee acknowledges
that he or she has received a copy of, and is familiar with the
terms of, the Plan, which is incorporated herein by reference. Any
capitalized terms not defined herein shall have the same meanings
assigned to them in the Plan.
2. The Option shall not be treated as an "incentive stock option"
within the meaning of Section 422 of the Code.
3. (a) Subject to the terms of the Plan and the other terms of this
Agreement regarding the exercisability of the Option, the Option may
be exercised with respect to 20% of the Shares upon each anniversary
of the date of grant of the Option (February 2, 1995), commencing on
the first anniversary of the date of grant of the Option. Once
available for purchase in accordance with the foregoing, unpurchased
Shares shall remain subject to purchase until the Option terminates
in accordance with the terms of Sections 3(b), 3(c) or 4 hereof.
(b) In the event of the Optionee's term as officer of the Company
shall terminate for any reason other than for cause, death, disability
or retirement, the Optionee may exercise the Option within one month
after such termination, but only to the extent that the Optionee may
be entitled to do so at such date of termination, except as may
otherwise be determined by the Committee. In the event of the
Optionee's term as officer of the Company shall terminate for cause,
the Option shall cease to be exercisable from and after such date of
termination, except as may otherwise be determined by the Committee.
(c) In the event of the death of the Optionee (i) while an officer
of the Company or any Subsidiary or Affiliate of the Company, (ii)
within three months after termination of term as officer of the
Company or any Subsidiary or Affiliate of the Company because of
retirement or (iii) within twelve months after termination of such
term as officer because of disability, the Option may be exercised,
notwithstanding any installment schedule otherwise applicable to
the Option, by the person or persons to whom the Optionee's rights
under the Option pass by will or applicable law or, if no such
person has such right, by his or her executors or administrators,
at any time, or from time to time, within twelve months after the
Optionee's death, but not later than ten years after the date of
the granting of the Option.
(d) The Option Price of the Shares as to which the Option shall be
exercised shall be paid to the Company at the time of exercise in
(i) cash, (ii) Stock already owned by the Optionee having a total
fair market value on the date of such exercise equal to the Option
Price, or (iii) a combination of cash and Stock having a total fair
market value on the date of such exercise equal to the Option
Price. The Committee, in its sole discretion, may also provide that
the Option Price may be paid by delivering a properly executed
exercise notice in a form approved by the Committee, together with
irrevocable instructions to a broker to promptly deliver to the
Company, against receipt of the certificates representing the
shares of Stock issuable upon such exercise, the amount of the
applicable sale or loan proceeds to pay the Option Price.
4. The Option shall terminate and be of no force or effect with
respect to any Shares not previously purchased by the Optionee upon
the expiration of ten years following the date the Option was
granted.
5. Subject to the limitations set forth herein and in the Plan,
the Option may be exercised by written notice mailed or delivered to
Congoleum Corporation, 3705 Quakerbridge Road, P.O. Box 3127,
Mercerville, New Jersey 08619-0127, Attention: Corporate Secretary,
which notice shall (a) state the number of Shares with respect to
which the Option is being exercised and (b) be accompanied by payment
of the full amount of the Option Price for the Shares being purchased
as set forth in Section 3(d) hereof. The Optionee shall not be or
have any of the rights or privileges of a stockholder of the Company
in respect of any Shares unless and until certificates representing
such Shares shall have been issued or transferred by the Company to
the Optionee.
6. The Optionee hereby represents and acknowledges that he or she
is acquiring the Option and the underlying Shares for his or her own
account for investment and not with a view to, or for sale in
connection with, the distribution of any interest therein or part
thereof, provided that nothing shall prohibit or restrict the sale of
such Shares by the Optionee in compliance with the Securities Act of
1933, as amended, and the rules and regulations thereunder. If any
law or regulation requires the Company to take any action with respect
to the Option or the Shares, the time for delivery thereof, which
would otherwise be as promptly as possible, shall be postponed for
the period of time necessary to take such action.
7. The Option shall not be transferable, other than under a
qualified domestic relations order (as defined under Section 414(p)
of the Code) (a "QDRO"), by will or by the laws of descent and
distribution, and no transfer under a QDRO, by will or by the laws
of descent and distribution shall be effective to bind the Company,
unless the Committee shall have been furnished with a copy of such
QDRO, such will or such other evidence as the Committee may deem
necessary to establish the validity of the transfer. During the
lifetime of the Optionee, only the Optionee or his or her guardian,
custodian or legal representative may exercise the Option and
receive cash payments and deliveries of Shares of Stock pursuant to
the Option.
8. (a) Neither the existence of the Plan nor the existence of the
Option shall affect in any way the right or power of the Company or
its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's
capital structure or its business, or any merger or consolidation of
the Company, or any issue of bonds, debentures, preferred or prior
preference stocks ahead of or affecting the Stock or the rights
thereof, or the dissolution or liquidation of the Company, or any
sale or transfer of all or any part of its assets or business, or any
other corporate act or proceeding, whether of a similar character or
otherwise.
(b) In the event of any change in the Stock by reason of any stock
dividend, recapitalization, reorganization, merger, consolidation,
split-up, combination or exchange of shares, or any rights offering
to purchase Stock at a price substantially below fair market value,
or of any similar change affecting the Stock, the number and kind
of Shares subject to the Option and the Option Price per Share
thereof shall be appropriately adjusted consistent with such change
in such manner as the Committee may deem equitable to prevent
substantial dilution or enlargement of the rights granted to the
Optionee hereunder. The Committee shall give notice to the Optionee
of any adjustment made pursuant to this Section 8(b), and, upon
notice, such adjustment shall be effective and binding for all
purposes of the Option and the Plan.
(c) Notwithstanding any other provision of the Option, in the event
of a Change in Control, the following rules shall apply:
i. The Option shall be accelerated immediately prior to or
concurrently with the occurrence of the Change in
Control and the Optionee shall have the right to
exercise the Option notwithstanding any installment
schedule otherwise applicable to the Option, at any
time, or from time to time.
ii. The obligations of the Company under the Plan and this
Agreement shall be binding upon any successor
corporation or organization resulting from the merger,
consolidation or other reorganization of the Company and
upon any successor corporation or organization
succeeding to substantially all of the assets and
business of the Company. The Company agrees that it will
make appropriate provisions for the preservation of
Optionee's rights under the Plan and this Agreement in
any agreement or plan which it may enter into or adopt
to effect any such merger, consolidation, reorganization
or transfer of assets.
iii. Except as hereinbefore expressly provided, the issuance
by the Company of shares of stock of any class, rights
or warrants to purchase shares of stock of any class, or
securities convertible into shares of stock of any
class, for cash or property, or for labor or services,
either upon direct sale or upon the exercise of rights
or warrants to subscribe therefor, or upon conversion of
shares or obligations of the Company convertible into
such shares or other securities shall not affect, and no
adjustment by reason thereof shall be made with respect
to, the number of Shares subject to the Option.
Dated as of _______________
CONGOLEUM CORPORATION
By: ____________________________________
Name: Howard N. Feist
Title: Sr. Vice President - Finance
The Option has been accepted by
the undersigned, subject to the
terms and provisions of the Plan
and of this Award Agreement.
________________________________
Optionee
